Rowan v. United States Post Office Department

by the Supreme Court of the United States

United States Supreme Court

397 U.S. 728

Rowan  v.  United States Post Office Department

Appeal from the United States District Court for the Central District of California

 Argued: January 22, 1970 --- Decided: May 4, 1970

Appellants, who are in the mail-order business, brought suit to enjoin the operation of 39 U. S. C. § 4009, challenging its constitutionality. That section provides that a person who has received by mail “a pandering advertisement which offers for sale matter which the addressee in his sole discretion believes to be erotically arousing or sexually provocative,” may request the Postmaster General to issue an order “directing the sender and his agents or assigns to refrain from further mailings to the named addressee.” Such order would also require the sender to delete the addressee’s name from his mailing lists and would prohibit him from trading in lists from which the deletion has not been made. If the Postmaster General believes that his order has been violated, he may notify the sender of his belief and the reasons therefor, and must grant him an opportunity to respond and to have an administrative hearing on whether a violation has occurred. If the Postmaster General thereafter determines that the order has been violated, he may request the Attorney General to seek an order from a district court directing compliance with the prohibitory order. A three-judge court found that § 4009 was constitutional when interpreted to prohibit advertisements similar to those initially mailed to the addressee. Held:

1. The statute allows the addressee unreviewable discretion to decide whether he wishes to receive any further material from a particular sender. Pp. 731–735.

2. A vendor does not have a constitutional right to send unwanted material into someone’s home, and a mailer’s right to communicate must stop at the mailbox of an unreceptive addressee. Pp. 735–738.

3. The statute comports with the Due Process Clause as it provides for an administrative hearing if the sender violates the Postmaster General’s prohibitory order, and a judicial hearing prior to issuance of any compliance order by a district court. Pp. 738–739.

4. The statute does not violate due process by requiring that the sender remove the complaining addressee’s name from his mailing lists, nor is the statute unconstitutionally vague, as the sender knows precisely what he must do when he receives a prohibitory order. P. 740.

300 F. Supp. 1036, affirmed.

Joseph Taback argued the cause and filed a brief for appellants.

Assistant Attorney General Ruckelshaus argued the cause for appellees. With him on the brief were Solicitor General Griswold, Peter L. Strauss, Robert V. Zener, and Donald L. Horowitz.

Louis J. Lefkowitz, Attorney General, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Lloyd G. Milliken filed a brief for the Attorney General of New York as amicus curiae urging affirmance. David E. McGiffert filed a brief for the Direct Mail Advertising Association, Inc., as amicus curiae.